Central Administrative Tribunal - Delhi
Si Rajinder Khatri vs Govt. Of Nct Of Delhi on 11 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.2191 of 2010 New Delhi this the 11th day of February, 2011 Honble Shri L.K. Joshi, Vice Chairman (A) Honble Dr. Dharam Paul Sharma, Member (J) SI Rajinder Khatri (D-1338, PIS No.28821531) S/o Late Mr. Sukhi Ram, R/o Village & Post Office Kulasi, District Jhajjar, Haryana, Group C, Aged 48 years. .... Applicant ( By Advocates: Shri Sourabh Ahuja ) VERSUS 1. Govt. of NCT of Delhi, Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 2. Joint Commissioner of Police, Armed Police, Delhi, through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police, North Distict, Delhi, through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 4. Joint Commissioner of Police (Establishment), through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. .. Respondents ( By Advocate Mrs. Renu George ) O R D E R Dr. Dharam Paul Sharma, Member (J) :
Consequent upon a joint departmental inquiry, the applicant has been awarded the penalty of forfeiture of one year approved service temporarily entailing proportionate reduction in his pay for a period of one year. The applicants suspension period from 14.3.2005 to 14.6.2005 has also been decided as not spent on duty for all intents and purposes. Feeling aggrieved, the applicant has filed the present Application challenging the legality of the penalty order dated 21.7.2006 passed by the disciplinary authority (Annexure A/2), the finding of the inquiry officer (Annexure A/1), on the basis of which the said penalty has been inflicted upon the applicant, and the order of the appellate authority dated 16.1.2010 dismissing the appeal of the applicant against the award of penalty (Annexure A/3) and also, the suspension order dated 14.3.2005 as well as the order by which his name has been kept in the secret list of doubtful integrity.
2. The applicant was proceeded against in the departmental inquiry along with Inspector Bir Singh, Head Constable Virender Singh and Head Constable Mahabir Singh on the following summary of allegations:-
It is alleged that on 17.03.2005 Sh. Yameen S/o Badlu R/o Village Burari Garhi appeared before Jt. CP/NR Delhi and complained that he had been dispossessed forcibly form Plot No.519 measuring about 850 square yards which he claimed to have purchased from one Savita Aggarwal in 1984 for Rs.70,000/-. Since then he (the complainant) has been staying on this plot. He further alleged that some property dealers of Burari Village, named in his compliant with open support and physical involvement of the local police including I/C P.P. Burari and SHO/Timar Pur, had demolished all his dwellings and dispossessed him of his land on 28/29.01.2005 and that all his complaints to the local police had fallen flat and no redressal was given to him. PCR Van Sugar-63 that had responded his call on 28.01.2005 also did not take any action on the call, rather the local police continuously kept on harassing and torturing the complainant and his family till the local police and property dealers successfully achieved their objective in completely dispossessing the complainant and forcing him away from the scene.
In this connection an enquiry was conducted by the then DCP/North during which it was revealed that the complaint was having possession over the said plot measuring 850 square yards in Khasra No.519, Burari Garhi, Delhi till 28.01.2005 in the form of an old hutment and he was using for keeping some of his belongings and keeping his animals for quite a number of years and that he was forcibly dispossessed by the party alleged against i.e. Bablu S/o Ravi Dutt, Honey S/o Datta Ram and Teenu S/o Krishan, all residents of Village Burari among other with the help of local police officials. Accordingly after enquiry as well as intervention of senior officers, a case vide FIR No.131/05 dated 18.03.2005 u/s 448/427/379/506/34 IPC P.S. Timar Pur, Delhi was registered into the matter and four persons namely Parveen, Amit Gyanender and Hemant Aggarwal were arrested on 18.03.2005. During enquiry, it was clearly revealed that SI Rajinder Khatri No.D/1338, the then I/C P.P. Burari as well as Inspector Bir Singh No.D-I/644, the then SHO/P.S. Timar Pur were prime-facie actively involved in facilitating the above mentioned accused in dispossessing the complainant of his house. A simple perusal of the enquiry report dated 23.02.2005 submitted by Inspr. Bir Singh (the then SHO/P.S. Timar Pur) in this regard on the complaint dated 29.01.2005 sent to SHO/P.S. Timar Pur clearly indicates that no altercation was found on the spot. However, when both the I.Os. i.e. HCs Mahabir Singh No.432/N and Virender Singh No.298/N who were marked D.D. No. 22 dated 28.01.2005 and D.D. No. 24 dated 29.01.2005 P.P. Burari/P.S. Timar Pur in this regard gave other statement, it became clear that the demolition/dispossession of the complainant has taken place during the intervening night of 28th and 29th January 2005. It clearly shows that the fact of dispossession of the complainant was in the knowledge of Inspr. Bir Singh (the then SHO/P.S. Timar Pur) as well as SI Rajinder Khatri (the then I/C P.P. Burari), but they neither prevented the same nor they took any legal action in that regard. In this regard the above said HCs also concealed the fact and lodged wrong reports in the D.D. entries for the reasons best known to them. Hence, it is clear that all the four were physically involved with the property dealers in dispossessing of Yameen and his family. They had played very dubious role in the whole episode.
The above act on the part of Inspr. Bir Singh No.D-I/644 (the then SHO/P.S. Timar Pur), SI Rajinder Khatri No.D/1338 (the then I/C P.P. Burari), Head Constables Virender Singh No.298/N and Mahabir Singh No.432/N amounts to gross misconduct, misuse of their official powers, malafide intention in the discharge of their official duties and unbecoming of police officer, which renders them liable for departmental enquiry under the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980.
3. In the inquiry 14 departmental witnesses were examined. 13 defence witnesses were also examined on behalf of all the four delinquent officials. Upon consideration of the evidence that so came on record during the inquiry, the inquiry officer returned the finding that charges levelled against all the four defaulters were fully proved. Copy of the findings of the inquiry officer was served upon the applicant on 29.3.2006 affording him an opportunity to represent against it. The applicant was also called upon the show cause as to why his suspension period be not decided as not spent on duty for all intents and purposes. The charged officials filed a joint representation on 5.4.2006. Thereupon the disciplinary authority passed the impugned order. Against this order, the applicant preferred an appeal which however did not find favour with the Commissioner of Police being the appellate authority.
4. In this Application, the applicant challenges the impugned orders as are mentioned in para 1 of the said Application, which have also been referred to hereinabove, on a number of grounds as contained in para 5 of the said Application. Accordingly, it has been contended that the impugned orders are illegal and arbitrary for there being no case of misconduct and no evidence against the applicant. The allegations levelled against the applicant are false and incorrect as can be seen from the fact that the investigating officer of case FIR No.131/05 has already applied in the Court for discharge of the accused persons as well as the factum of registration of FIR No.350/05 under Section 420/468/471/204 IPC registered against the complainant Yameen for submitting forged documents in respect of ownership of disputed property. In the testimony of 14 PWs, no evidence came on record to suggest that the applicant has either turned blind eye to the incident or else he facilitated dispossession of the complainant and favouring the opposite party. As a matter of fact, the complainant continued to be in possession of the said Plot. It has been further contended that the charge farmed was not as per the summary of allegations and the applicant was not given any opportunity to rebut the additional/new charge. This amounts to denial of reasonable opportunity as well as violation of Rule 16 (ix) of the Delhi Police (Punishment & Appeal) Rules, 1980. It has further been submitted that in his defence statement, the applicant has specifically pleaded inter alia that as the reliance has been placed on the preliminary inquiry report of DCP/North (Mr. Rajesh Khurana) in the regular departmental inquiry then Mr. Rajesh Khurana be examined in the inquiry and the applicant should be given opportunity to cross-examine him. But this was not done which has caused great prejudice to the applicant as the document, i.e., preliminary inquiry report has been used against the applicant at his back which is in violation of Article 311 of the Constitution of India. Furthermore, the defence pleas have not been given due consideration and the inquiry officer has returned the finding on the basis of surmises and conjectures. The disciplinary authority has taken into consideration extraneous matter and has also not granted him personal hearing before inflicting upon him the penalty. It has further been submitted that though inquiry officer has held the charge proved against all the four charged officials but the disciplinary authority has not imposed any penalty to Inspector Bir Singh and thus the applicant has been discriminated in the matter. The appellate authority order is also bad in law for being unreasoned and non-speaking order, as none of the pleas raised by the applicant was taken into consideration.
5. The applicants contentions as aforesaid are opposed by the respondents in their reply wherein it has been submitted that the inquiry has been conducted against the applicant as per the applicable rules affording due opportunities to the applicant to defend himself. The applicants pleas have been given due consideration by all the authorities, namely, inquiry officer, disciplinary authority as well the appellate authority. The applicant has been punished on merits and the impugned actions are not open to any objection in law.
6. It has further been submitted by the respondents that the evidence on record unambiguously indicates that the complainant was dispossessed from the disputed property for which the applicant failed to take necessary legal action in the matter, in spite of having knowledge of the incident. The applicant has tried to divert attention from this aspect of the matter by racking up the issue of title to the property in question, which does not have any bearing on the essence of the allegations leveled against the applicant, that is, failure to prevent forcible dispossession of the complainant and not taking any action in respect thereto inspite of having knowledge of the same.
7. At the hearing, the learned counsel for the applicant vehemently contended that the applicant has been subjected to hostile discrimination as his senior Inspector Bir Singh has not been awarded penalty in spite of the fact that he was jointly proceeded against in the inquiry along with the applicant wherein the inquiry officer held that the charge against Inspector Bir Singh as well as other three charged officials, including the applicant, stood fully proved beyond any shadow of doubts. The learned counsel for the applicant has drawn our attention to the operative part of the order of the disciplinary authority at page 37 of the paperbook whereby Inspector Bir Singh was warned by taking a lenient view as he was going to retire from service next year while all other three charged officials were awarded the penalty of one year approved service. When the charges against all the four officials were fully proved in the inquiry, there was no justification for the disciplinary authority to take different view only in respect of one as against the other three charged officials. Thus the applicant has been subjected to hostile discrimination, which is bad in law.
8. The learned counsel for the applicant very strongly contended that the impugned action against the applicant is bad in law for the reason that Mr. Rajesh Khurana, the then DCP, North, who conducted the preliminary inquiry was not examined in the departmental inquiry as a result of which the applicant has been denied the opportunity to cross-examine him. The learned counsel contended that the then DCP (North) was a material witness, which should have been examined and failure to do so, has vitiated the entire inquiry proceedings against the applicant. As such, the Application deserves to be allowed on this very short point. In support of this, the learned counsel relied upon the case of Hardwari Lal vs. State of U.P. and others, (1999) 8 SCC 582. Further reliance has been placed to the case of M/s Bareilly Electricity Supply Co. Ltd. vs. The Workmen and others, 1971 (2) SCC 617, in support of the proposition that merely production of preliminary inquiry report by itself was not sufficient unless its maker was examined personally during the inquiry.
9. In response to this, the learned counsel for the respondents submitted that copy of the preliminary inquiry report has been given to the applicant whose authenticity is not in dispute. The law only requires that copies of relied upon documents be given to the charged official(s). It is for the department to consider as to which witness is to be examined in the inquiry to prove the charge against the delinquent employee. As regards different treatment meted out to Inspector Bir Singh.
10. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case.
11. The complainant Shri Yameen is stated to have been forcibly dispossessed from his possession of Plot No.519 in Burari Village by some property dealers of that village on the intervening night of 28/29.01.2005 with the support of the local police. The applicant was the Incharge of the Police Post Burari. This falls under the jurisdiction of Police Station Timar Pur. Inspector Bir Singh was the SHO of this Police Station, having over all jurisdiction over the area falling under the Police Station, including P.P. Burari. The essence of allegations against him is that he failed to prevent forcible dispossession or in the case otherwise failed to take necessary legal action in connection therewith, in spite of knowledge of the said incident. The complainant Yameen made complaints to local police at Police Post Burari but of no avail. Having failed to get necessary redressal from the local police, he approached the Joint Commissioner of Police, Northern Region, Delhi with a complaint on 17.3.2005. The said complaint was marked to Mr. Rajesh Khurana, the then DCP, North, for inquiry. The inquiry so made revealed that the complainant was in possession of the Plot in question till 28.1.2005 in the form of old hutment which he was using for keeping some of his belongings and his animals for quite a number of years and he was forcibly dispossessed by the opposite party, namely, Bablu, Honey and Teenu all residents of Village Burari among others with the help of local police. The report also revealed involvement of the applicant in facilitating dispossession of the complainant of his house. After this inquiry, an FIR No.131/2005 under Sections 448/427/379/506/34 IPC was registered in P.S. Timar Pur, Delhi, into the matter and four persons, namely, Parveen, Amit, Gyanander and Hemant Aggarwal were arrested on 18.3.2005. The two Head Constables have been proceeded against in the departmental inquiry for lodging wrong reports in D.D. entries in question. Inspector Bir Singh also failed to take any action inspite of having knowledge of the incident. The preliminary inquiry was one of the relied upon documents, copy of which has been duly provided to the charged officials. The main thrust of the applicants case has been that Mr. Rajesh Khurana, the then DCP, North, who submitted his preliminary inquiry report ought to have been examined in person during the departmental inquiry and thereby giving opportunity to the applicant to cross-examine him and failure to do so has vitiated the departmental inquiry proceedings and rendered the respondents action bad in law on this account. The case of Hardwari Lal referred to by the applicant in this regard is distinguishable on facts for it depends on the facts and circumstances of each case to who could be regarded as a material witness in a given case. Reliance has been placed in the case of M/s Bareilly Electricity Supply Co. Ltd., in particularly, the observations made by the Apex Court in para 14 of its judgments to the effect.
If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact.
12. Much reliance has been placed by the applicants counsel on the aforesaid observation that if a letter or document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. The question that now arises for consideration in the present case is as to which fact that is relevant to the inquiry, is sought to be proved by the production of preliminary inquiry report. The applicants counsel has not furnished any clarification on this aspect of the matter. The question as to the necessity of examining any particular witness is to be examined in the context in which it has arisen for consideration. It is very relevant to note in this regard that Delhi Police (Punishment & Appeal) Rules, 1980 contain elaborate provisions with regard to conduct of preliminary inquiry and use of such preliminary inquiry report in a regular departmental inquiry. Rule 15 of these Rules deals with the preliminary inquiry which is reproduced below:-
15. Preliminary enquiries.- (1) A preliminary enquiry is a fact finding enquiry. Its purpose is (i) to establish the nature of default and identity of defaulter(s), (ii) to collect prosecution evidence, (iii) to judge quantum of default and (iv) to bring relevant documents on record to facilitate a regular departmental enquiry. In cases where specific information covering the above-mentioned points exists a Preliminary Enquiry need not be held and Departmental enquiry may be ordered by the disciplinary authority straightaway. In all other cases a preliminary enquiry shall normally proceed a departmental enquiry.
(2) In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.
(3) The suspected police officer may or may not be present at a preliminary enquiry but when present he shall not cross-examine the witness. The file of preliminary enquiry shall not form part of the formal departmental record, but statements therefrom may be brought on record of the departmental proceedings when the witnesses are no longer available. There shall be no bar to the Enquiry Officer bringing on record any other documents from the file of the preliminary enquiry, if he considers it necessary after supplying copies to the accused officer. All statements recorded during the preliminary enquiry shall be signed by the person making them and attested by enquiry officer.
13. The use of preliminary inquiry report and the evidence contained therein in the departmental inquiry is dealt with in Rule 16 (iii) of the Rules which reads as follows:-
(iii) If the accused police officer does not admit the misconduct, the Enquiry Officer shall proceed to record evidence in support of the accusation, as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The Enquiry Officer is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer, be procured without undue delay, inconvenience or expense if he considers such statement necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer, or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and he shall be given an opportunity to take notes. Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witness concerned. The accused shall be bound to answer any questions which the enquiry officer may deem fit to put to him with a view to elucidating the facts referred to in the statements of documents thus brought on record.
14. From the aforesaid provisions, it is seen that preliminary inquiry need not be conducted in each and every case. Such an inquiry has a definite purpose. It is for the satisfaction of the departmental authority before deciding upon a course of action in a matter. If that purpose can be otherwise served, there may not be any necessity for holding a preliminary inquiry. Once a complaint is received by an authority, it is to be decided as to what action needs to be taken on such a complaint. The authority concerned may decide not to take any action on the complaint if it does not find any substance in it. If the complaint reveals commission of cognizable lapse, the authority concerned may order necessary action thereon where the complaint contains all the necessary material for that purpose. Where a complaint does not contain all the information necessary for deciding as to what action needs to be taken on it, it may expedient to have a preliminary inquiry in the matter. Accordingly, Rule 15 referred to above provides for a preliminary inquiry, inter alia, to establish the nature of default and identity of defaulter, to collect prosecution evidence, to judge quantum of default and to bring relevant documents on record to facilitate a regular departmental enquiry. However, where further regular departmental inquiry is ordered on the basis of preliminary inquiry report, the charge is required to be independently proved in the regular departmental inquiry. Thus the preliminary inquiry loses its relevance after initiation of regular departmental inquiry. Furthermore, Rule 16 provides for witnesses to be examined direct in the presence of accused, who would be given an opportunity to cross examine the witnesses. However, if the witness is not available and the statement made in the preliminary inquiry is sought to be brought on record during the regular inquiry, the same can be done in the manner as prescribed in Rule 16 (iii). Accordingly, only unsigned statements made during the preliminary inquiry can be brought on record in a regular inquiry through recording the statements of the officer or Magistrate who had recorded the statement of the witness concerned. In other cases, it would not be necessary to examine the officer concerned during the inquiry. The learned counsel for the applicant has not pointed out as to for which statement recorded in the preliminary inquiry, the then DCP, North, is required to be appeared in person in the regular departmental inquiry in terms of the said Rule. Therefore, we do not find any force in the applicants contention that the inquiry stand vitiated on account of non-examination of DCP, North who conducted the preliminary inquiry.
15. It is open to the disciplinary authority to award different punishment to persons involved in a given case depending upon their role and extant of their involvement and other mitigating circumstances. There is thus no infirmity in the disciplinary authority taking a lenient view in respect of Inspector Bir Singh in view of his early retirement from service which is not the case of the applicant. The primary responsibility in the case was that the applicant being Incharge of P.P. Burari, Inspector Bir Singh was concerned mere as a supervising officer. The lapse attributed to him is reporting on the complaint that there was no altercation, which did not find support from the D.D. entries. The applicants position is thus not comparable with that of the Inspector. We do not find any infirmity in the respondents action in this regard. His plea of discrimination is thus devoid of substance.
16. We do not find any force in the applicants contention that the charge framed was in any way different from the allegations. The applicants contention as to the violation of Rule 16 (ix) is also devoid of substance. The applicant has not shown if the inquiry officer has recorded finding on charges different from those originally framed without giving opportunity to the applicant to defend himself against any such charge. Nor the applicant has pointed out any extraneous matter that is alleged to have been taken into consideration by the disciplinary authority. The applicant never made a request to the disciplinary authority for personal hearing. In the absence of any such request it was incumbent upon the disciplinary authority to give any personal hearing before passing his orders of penalty. No such opportunity is exercised in the rule except in the cases of censure where the employee concerned has requested for it. We also do not find order of the appellate authority as bad for the reason of it being non-speaking one. We have carefully perused the said order and find that it contained the reasons for, the order of the appellate authority is in terms of Rule 25 (2) of Delhi Police (Punishment & Appeal) Rules, 1980.
17. In property disputes, it is for the Court of competent civil jurisdiction to determine the rights and liabilities of the parties. The police authorities are not expected to involve in such matters by taking side with any party. However, where such disputes are likely to cause breach of peace, they may take action under Section 145 read with 151 Cr.P.C. to preserve peace and see that right of possession is not disturbed except by due process of law, leaving the parties to have determination of their respective rights by civil Courts. Once factum of forcible dispossession of the complainant has come on record, the applicant is expected to initiate necessary action in the matter to preserve peace, leaving the parties to take recourse to appropriate legal forum for determination of their respective rights. Failure to do so in the facts of the present case has been the subject of inquiry in departmental proceedings. This is not a case of no evidence as 27 witnesses in all have been examined in the inquiry on both sides, besides the documentary evidence. Once there is some evidence, it is not open for this Tribunal to go into its sufficiency or otherwise. Nor we can reappraise the evidence. The applicant has referred to the ownership rights of the parties involved in the case, which are not relevant to the issue under consideration and can be gone into by the court of competent civil jurisdiction in appropriate proceedings.
18. In the facts and circumstances, the applicant has failed to make out a case for the grant of relief as prayed for in this Application. The Application is accordingly dismissed. No order as to the costs.
(Dr. Dharam Paul Sharma) (L.K. Joshi) Member (J) Vice Chairman (A) /ravi/